If you do not have a will, your wishes for what happens to your possessions after your death may not come to pass. Even if you think you do not have a large estate, if you own a home or have other assets, it is worthwhile to do some estate planni

ng, and essential that you have a will.

Take the recent case of Margaret Flood. She had an estate of $480,000 (perhaps the value of her house). She had four children, two of whom were disabled. The government had been providing services to these children, and thus had a right to reimbursement if the children were to ever have assets of their own. Ms. Flood had wanted to shelter her children’s inheritance to protect it against taxes and other liens, so that the disabled children especially would have the benefit of what she left to them. She started down the right path – consulting an attorney and indicating a desire to have a will with the necessary provisions, specifically special needs trusts for the disabled children so that they, not the government, would get the inheritance. Unfortunately, she did not execute a will before she passed away.

Upon her death, the estate’s administrator filed an action to establish the trusts, asserting that this had been Ms. Flood’s intent. Absent these trusts, the money would have gone directly to each of the children, and the government would have a legitimate claim for reimbursement from the disabled children. That is because if a person dies without a will, the estate is distributed strictly according to a method set forth in the law. The trial court allowed the trusts to be established, citing the legal doctrine of probable intent, which allows for the intent of the testator (the person who made the will) to be carried out.

But the Appellate Division reversed. If the words of a will seem to imply one thing, but it is proved that the testator really meant for something else to happen, the court does have the power to modify the will so that the intent of the deceased is honored. But here, there was no will to be modified. If a person does not even have a will, then their pre-death intent doesn’t count. So, the children inherited directly with no trusts, and the inheritance was not protected.

The old saying is true: if there’s a will, there’s a way. Make sure you have a will and that it is up to date.